Hines v Birkbeck College (No. 2)

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
Judgment Date17 June 1991
Judgment citation (vLex)[1991] EWCA Civ J0524-9
Date17 June 1991
Docket Number91/0557

[1991] EWCA Civ J0524-9






Royal Courts of Justice.


Lord Justice Nourse

Lord Justice Balcombe

Lord Justice Mccowan


Albert Gregorio Hines
(1) Birkbeck College (a Body Corporate)
(2) The University of London (a Body Corporate)
(Defendants) (Respondents)

THE (PLAINTIFF) APPELLANT appeared in person.

MR. J. MUNBY QC (instructed by Messrs. Dawson & Co.) appeared on behalf of the (First Defendant) Respondent.

MR. P. SMITH (instructed by Messrs. Clifford Chance) appeared on behalf of the (Second Defendant) Respondent.


In Hines v. Birkbeck College [1986] Ch. 524 Mr. Justice Hoffmann struck out the plaintiff's action against the college and the University of London on the ground that the subject matter of the proceedings was within the exclusive jurisdiction of the visitor. That decision was approved by the House of Lords in Thomas v. University of Bradford [1987] A.C. 795 and the plaintiff's appeal against the order of Mr. Justice Hoffmann was subsequently dismissed; [1987] Ch. 457. The plaintiff did not refer the dispute to the visitor. On 29th July 1988 there came into force section 206 of the Education Reform Act 1988, which has given to the court an initial jurisdiction over a dispute of this kind; see Pearce v. The University of Aston in Birmingham [1991] 2 All E.R. 461. The plaintiff has since commenced a second and seemingly identical action against the college and the university. The main question which now arises is whether, as Mr. Justice Mervyn Davies has held, he is prevented from prosecuting it by reason of the doctrine of res judicata.


It is unnecessary to repeat the earlier history of the matter, which is fully set out in the judgment of Mr. Justice Hoffmann in the first action. Shortly stated, the plaintiff claims that in July 1983 the college wrongfully dismissed him from the post to which he had been appointed in November 1971 and that the university thereafter acted unlawfully in withdrawing his title and status of Professor of Economics.


The writ in the second action indorsed with a statement of claim was issued on 29th June 1989, less than six years after the alleged wrongful dismissal. The college then issued a summons to strike it out, primarily on the ground of res judicata, and a further summons seeking, in the alternative, an order that all further proceedings be stayed until the plaintiff had paid the costs he had been ordered to pay to the college in the first action. The university issued a single summons seeking relief similar to that sought by the college.


The three summonses were adjourned to the judge. In due course they were heard by Mr. Justice Mervyn Davies. On 30th March 1990 he made an order striking out the action as against both defendants on the ground of res judicata. In his judgment he dealt also with two further questions which would have arisen if he had allowed the action to proceed. He held that not only the plaintiff, but also the college and the university, were at liberty to refer a dispute to the visitor under section 206(2) of the 1988 Act. He also held that each defendant would have been entitled to a stay until sums of £6,000 and £7,500 had been paid into court in respect of the costs which the plaintiff had been ordered to pay to the college and the university respectively in the first action. The plaintiff has appealed against the judge's decision of all three questions.


The hearing in this court started at 2.00 p.m. on 19th March 1991. At the end of that afternoon the plaintiff, who has appeared in person in both courts, was still addressing us on the main question of res judicata. On the morning of 20th March we told him that we had formed a preliminary view of that question favourable to him. He agreed to our proposal that he should take it no further until after we had heard the arguments of counsel for the defendants. Having heard the plaintiff's arguments on the second and third questions, we informed counsel for the defendants that we did not wish to hear them on either of those questions. Having then heard their arguments on the main question, we informed the plaintiff that we did not wish to hear him in reply on that question. On 21st March judgment was reserved.


Shortly afterwards it came to our notice that on 15th June 1990 in Thomas v. University of Bradford (No. 2) Mr. Justice Hoffmann had decided a question which appeared to be identical to the main question raised on this appeal. He had held that there was no res judicata. He had not been referred to Mr. Justice Mervyn Davies' decision and we had not been referred to Mr. Justice Hoffmann's decision. We informed counsel for the defendants of this development. On 12th April they supplied us with copies of the transcript of Mr. Justice Hoffmann's judgment. They did not request a further oral hearing. They were content to make brief further submissions in writing. Since Mr. Justice Hoffmann's decision was clearly in the plaintiff's favour, no further argument on his part was necessary. On 25th April the House of Lords delivered judgment in Arnold v. National Westminster Bank plc [1991] 2 W.L.R. 1177, a case in which the judgments both of this court [1990] Ch. 573 and of the Vice-chancellor at first instance [1989] Ch. 63 had been referred to at some length in the argument of Mr. Munby Q.C. for the college. He subsequently informed us that there was nothing in their Lordships' speeches which required him to ask for the opportunity to address further argument to the court.


I now consider the main question of res judicata. It was pointed out by Lord Justice Diplock in Thoday v. Thoday [1964] P. 181, at pages 197–198, that "estoppel per rem judicatam" was a generic term which in modern law included two species, namely "cause of action estoppel" and "issue estoppel". That distinction has since become well recognised in the authorities. The foundation of Mr. Munby's argument on the main question, which was adopted by Mr. Smith on behalf of the university, was that the species of estoppel which had barred the plaintiff's second action was cause of action estoppel.


Shortly stated, the decision of Mr. Justice Mervyn Davies was to this effect. He assumed, rather than decided, that he was concerned with cause of action estoppel and not with issue estoppel. Relying on the statement of the general principle made in the speech of Lord Reid in Carl Zeiss Stiftung v. Rayner & Keller Ltd. (No. 2) [1967] 1 A.C. 853, 909, he recognised that before the estoppel could arise the judgment in the first action must have been a final judgment and that there must be identity both of parties and of subject matter in the first and second actions. Clearly there was an identity of parties. Having considered the other two points, he held that there was an identity of subject matter and that the judgment in the first action was a final judgment for the purposes of the doctrine of res judicata. Next he asked himself whether the 1988 Act had operated so as to lift the bar of the estoppel. In answering that question in the negative, he relied on the judgments at first instance and in this court in Arnold v. National Westminster Bank plc, from which I need refer only to these words of the Vice-chancellor [1989] Ch. 49H:

"So far as cause of action estoppel is concerned the rule is absolute: you cannot sue twice for the same relief based on the same cause of action even if new facts or law have subsequently come to light."


He also referred to R. v. Middlesex Justices, ex parte Bond [1933] 2 K.B. 1, which is authority for the proposition that a dismissal for want of jurisdiction gives rise to a res judicata precluding the plaintiff from reviving his claim before the tribunal which has already denied jurisdiction; as to this, see further below.


In dealing with the main question in this court, the plaintiff submitted that the learned judge's decision was wrong at every point. By the end of the first afternoon he had wholly failed to satisfy me, absent the 1988 Act, that the judge's decision would have been wrong in any respect. However, since he did not complete his argument on the main question, I do not express a final view to that effect. On the other hand, I am satisfied, contrary to the view of the judge, that the effect of the 1988 Act has been to lift the bar of the estoppel.


So far as material, section 206 of the 1988 Act is in these terms:

"(1) The visitor of a qualifying institution shall not have jurisdiction in respect of any dispute relating to a member of the academic staff which concerns his appointment or employment or the termination of his appointment or employment.

(2) Subsection (1) above does not apply in relation to any dispute which is referred to the visitor of a...

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